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CBLDFNews: Supreme Court Refuses Castillo Case

The Comic Book Legal Defense Fund has learned that the U.S. Supreme
Court denied Jesus Castillo’s petition for writ of certiorari,
bringing his three-year quest for justice to a close. Castillo is
presently serving a period of unsupervised probation.

The CBLDF has been providing counsel for Castillo since his arrest in
2000 when he was charged with two counts of obscenity for selling
adult comic books to adults. The Fund’s lawyers persuaded the
court to try the two counts separately and waged a fierce courtroom
battle that included expert testimony from Scott McCloud and
Professor Susan Napier. The State prosecutor did not offer
contradictory testimony, but secured a guilty verdict with a closing
argument stating, “I don’t care what type of evidence or what
type of testimony is out there, use your rationality, use your common
sense. Comic books, traditionally what we think of, are for kids.
This is in a store directly across from an elementary school and it
is put in a medium, in a forum, to directly appeal to kids. That is
why we are here, ladies and gentlemen. … We’re here to get
this off the shelf.” Castillo was found guilty and sentenced to
180 days in jail, a year probation, and a $4,000 fine.

Immediately following the first trial, the State dropped the second
obscenity count while the Fund prepared its appeal. In 2002 the
Appeals court rendered a 2-1 split decision upholding the
conviction. Justice Tom James, writing in dissent, would have
reversed the conviction on the ground that the State did not provide
sufficient evidence that Castillo had knowledge of the content and
character of the offending comic book. On the strength of James’
dissent, the Fund filed a Petition for Discretionary Review to the
Texas Court of Criminal Appeals, which was denied. At the end of the
road for Texas Justice, the Fund took the case to the U.S. Supreme
Court.

Fund Legal Counsel Burton Joseph explains, “It is rare that the
Supreme Court accepts individual criminal cases for consideration.
In the Castillo case, in spite of the odds, CBLDF appealed to the
Supreme Court on the chance that they would reverse what appeared to
be an unjust and unconstitutional decision in the Texas courts. The
principle was important, but we knew the odds were long.”

“Unfortunately, fighting the right battles is not a guarantee of
winning,” Fund Director Charles Brownstein says. “The Fund
put up a strong fight for Castillo against the rising tide of
repression. We were successful in knocking out the second charge
against Jesus and in getting a sentence where no actual jail time was
served, but unfortunately the higher courts would not correct the
blinding injustice at the heart of this case.”

Fund board member Peter David says, “When dealing with the
denseness of the `Protect the children!’ censorship hysteria
in Texas, coupled with the unlikelihood that the Supreme Court would
hear the case, this was almost a hopeless cause from the get-go.
However, oftentimes it’s the hopeless causes that are the ones worth
fighting. This unfortunate and spectacularly unjust outcome doesn’t
change that.”

Burton Joseph adds, “One thing is clear, with every defeat of the
First Amendment, the censors gain courage to pursue their
unconstitutional ends. The Castillo case is among the most appalling
cases of injustice ever to come to the attention of CBLDF.
Conservative communities are quick to condemn comic book artists and
publishers without an understanding that they enjoy the full panoply
of First Amendment rights.”

“This case bodes badly for the First Amendment,” Brownstein
comments. “By choosing to deny Jesus’ plea for justice, the
Supreme Court has allowed a precedent to stand that allows a man to
be convicted of obscenity charges without adequate proof being
presented that the work he is convicted for selling is
constitutionally obscene. All because the medium the alleged
obscenity was placed in `is for kids.'”

Fund board member Neil Gaiman says, “I think the hardest thing to
believe is that Jesus was found guilty of selling an adult comic,
from the adult section of the store, to an adult police officer, and
convicted because the DA convinced the jury that all comics are
really intended for children. I can’t imagine a world in which the
same argument would have worked for books or for films — and I’m
afraid that highlights why comics retailers (and artists and writers
and publishers) still need a Defense Fund, and still need to be
defended.”

“Perhaps the worst thing about the decision is the chilling
effect it will have on everyone else working with comics and graphic
novels,” says attorney and Fund board member Louise Nemschoff,
adding, “As we approach another election year, we can expect to
see an increase in such attacks on free expression. Now, more than
ever, we need the CBLDF to both educate the public and defend those
working in the industry from further incursion on First Amendment
rights. It deserves our whole-hearted support.”